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In the Absence of an Advance Directive, Who Makes Decisions for Incapacitated Patients?

Forrest Lang, MD, Professor in the Department of Family Medicine at East Tennessee State University and Timothy Quill, MD, Professor of Medicine, Psychiatry, and Medical Humanities at the University of Rochester, wrote in their Aug. 15, 2004 article "Making Decisions with Families at the End of Life":

"If there is no advance directive, the physician's first challenge is to determine whom to approach about critical care decisions. While families frequently choose to involve a large number of connected relatives in these discussions, it is useful to define who has 'final say.' Some states have enacted legislation that clearly defines the hierarchy of decision makers, and state law should direct these decisions when applicable. Without legal guidance, the most frequent hierarchy is the spouse, then the adult children, and then the parents."

Herma Hill Kay, JD, Law Professor at U.C. Berkeley was quoted in a Mar. 29, 2005 article titled "Spouse As Next of Kin Law Has Many Roots" published by the Associated Press:

"The practice of giving the spouse decision-making authority stretches back to English common law, when a woman basically became a non-person when she married... Of course the laws giving one spouse direction over the other's affairs are now gender-neutral."

New York Times journalist Shaila Dwan wrote in an Oct. 26, 2003 article titled "It May Be a Family Matter, But Just Try to Define Family":

"Overwhelmingly, state laws and courts have granted the spouse the first right to make life-or-death decisions. Next come the children, and then the parents. In a system focused on nuclear families, this reflects the view that spouses are far better equipped to make proxy decisions because they share responsibilities and have known each other intimately in their adult lives, rather than in childhood."